WASHINGTON — President Obama announced Thursday night the administration will extend temporary legal status to millions of undocumented immigrants in a larger package of executive actions aimed at U.S. immigration policy.
The actions include border security and business-related measures, but the focus — and controversy — of the actions is in the broadening of temporary legal status for certain categories of undocumented immigrants.
The actions will expand the 2012 program, Deferred Action for Childhood Arrivals, that gave temporary legal status to undocumented immigrants who were born after 1981 and brought to country before age 16 and before 2007. The program will now include undocumented immigrants who entered the country before 2010.
The undocumented parents of U.S. citizen or legal resident children will also be able to apply for temporary legal status — under a set of specific conditions. The parents must be low priority for deportation and be able to prove they have lived in the United States for five years. The parents will be required to pass background checks, pay fees, and provide other data, and, in return, will be protected from deportation and given work permits.
The temporary legal status will last for three years at a time.
The number of undocumented parents of U.S. citizen and legal resident children is estimated to be about 3.3 million, according to an analysis by the Migration Policy Institute.
Obama decided to release his action plan this week after his return from Asia Sunday, a senior administration official said. After reviewing recommended actions crafted by the Department of Homeland Security and its secretary, Jeh Johnson, Obama decided it was time to act. The president consulted with Democratic leaders in Congress before making the final call on timing.
In remarks Thursday night from the White House, Obama emphasized that Congress should pass a bill but that in the interim, he is acting unilaterally.
"There are actions I have the legal authority to take as president — the same kinds of actions taken by Democratic and Republican presidents before me — that will help make our immigration system more fair and more just," Obama said.
He also addressed the criticism that the actions amount to "amnesty" to undocumented immigrants, arguing and framing the executive actions instead as "accountability."
"I know some of the critics of this action call it amnesty," Obama said. "Well, it's not. Amnesty is the immigration system we have today — millions of people who live here without paying their taxes or playing by the rules, while politicians use the issue to scare people and whip up votes at election time."
"That's the real amnesty — leaving this broken system the way it is," he continued. "Mass amnesty would be unfair. Mass deportation would be both impossible and contrary to our character. What I'm describing is accountability — a commonsense, middle-ground approach: If you meet the criteria, you can come out of the shadows and get right with the law."
Ahead of the announcement, some prominent Democrats floated the idea of delaying the actions until after the new Republican-controlled Senate is seated, giving the GOP a chance to act on immigration — or, more likely, not act — and providing Obama with more political cover to act on his own. Whatever consideration the idea got inside the White House "went out the window," the official said, when House Speaker John Boehner said in a post-election press conference that he could not commit to an immigration vote if Obama promised to postpone the executive action until next year.
After the Boehner press conference, Obama and his aides decided to move ahead. The administration official said the release of the actions put the White House in a better position to push back on the GOP because now they will be fighting over what Obama is specifically doing, not how Republicans were characterizing what they were planning to do. There was a consensus from the senior administration officials at the briefing that the time for waiting on the GOP had passed.
"Deferring action even longer so we would have a better talking point against Speaker Boehner and Paul Ryan just didn't make much sense to us," an official said.
Obama first announced his intention to act unilaterally on immigration in June, when it became clear a comprehensive, bipartisan bill would not make it through the Republican-controlled House. The president promised action by the end of summer, a first delay at the request of Boehner. He later delayed any decision until after the midterm election at the request of vulnerable Senate Democrats.
The Thursday announcement is the culmination of a year of sharp criticism from the left on the issue. But the actions do not include a key group to activists: the parents of undocumented immigrants covered by the 2012 measures, or the so-called DREAMers.
At a background briefing for reporters at the White House ahead of Obama's Thursday night speech, senior administration officials said DREAMers lack the connection to existing permanent law that legal residents and citizens do. The administration looked for ways to grant their parents legal status, but in the end administration lawyers at both the Department of Homeland Security and the White House couldn't find a legal way to do it.
The reasoning, according to the administration, is this: Existing U.S. law gives U.S. citizens and legal residents the chance to gain citizenship or legal status for parents who still live outside the United States. There is no such law for DREAMers, who by definition are undocumented themselves.
At the briefing, the administration officials took pains to note the lack of a specific pathway to legal status for DREAMer parents does not mean all of those people are unaffected by the actions — many DREAMers have younger siblings who were born in the United States and are citizens.
"It's hard to know precise numbers, but we think it's likely that a significant percentage — probably less than 50% but some percentage — of [DREAMer parents] will be covered because they will also have other children who are citizens or permanent residents," a senior administration official said. "So though they're not covered as a class, if you will, we think that a number of them will probably be covered."
Other elements of the actions hit specific issues long raised by activists.
The controversial Secure Communities program, which fingerprinted people who were arrested and made it easier to deport undocumented immigrants, has also been scrapped as currently constituted and will be revamped.
The Department of Homeland Security (DHS) is also refining removal priorities, and immigrants with strong family ties and no serious criminal history will now be deemed low priority for removal. Homeland Security Chief Jeh Johnson has previously said that he needed to socialize these coming enforcement guidelines among the agents on the ground to get buy-in from them. A well-known challenge surfaced in 2011 after the Morton Memo outlining prosecutorial discretion often went unheeded by agents.
The executive actions also include "continuing the surge of resources that effectively reduced the number of unaccompanied children crossing the border illegally this summer," according to a fact sheet prepared by the White House. That document begins by stating the executive actions will "help secure the border, hold nearly 5 million undocumented immigrants accountable, and ensure that everyone plays by the same rules."
The border security changes will likely do nothing to appease Republicans who have repeatedly said that they will fiercely oppose Obama's administrative actions.
It remains unclear exactly what form Republican opposition will take, but Boehner has said that Republicans will fight the president "tooth and nail" and that all options are on the table.
Several Republican lawmakers have floated the idea of defunding the president's actions through the appropriations process, but a specific plan to do so has yet to emerge, and will face some challenges. Because the core of the executive actions actually involves inaction (not deporting), the efforts will have to likely target other aspects of the actions like work permits.
Officials are keenly aware that the incoming Congress will have many members who want to stop or reverse Obama's executive actions. But the administration believes it will implement a series of changes that are essentially Republican-proof. Applications for the new temporary legal status will be run through the U.S. Citizenship and Immigration Services department, which is supported by fees paid by applicants and therefore cannot be stopped by a government shutdown. The new deportation enforcement guidelines can only be impaired if Congress votes to defund Homeland Security's immigration law enforcement arm, which an official said was politically untenable. An official vowed that Obama would veto any bill containing a policy rider aimed at undoing his executive actions, and officials at the briefing laughed off the threat of a Republican lawsuit.
"Anybody with a filing fee can sue," an official said. "So there's nothing we can do about that."